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This appeal of the district court's denial of Miller's motion for an extension of
time to file a petition for a writ of habeas corpus, submitted as an application
for a certificate of appealability, 28 U.S.C. 2253(c)(1), presents the question
whether the period of limitation set forth in 28 U.S.C. 2244(d)(1) is subject to
equitable tolling. We conclude that it is, and thus we will grant the certificate
of appealability, vacate the order of the district court dismissing Miller's
motion, and remand for further consideration.
I.
2
In 1994, the New Jersey Department of Corrections found inmate Frank Miller
In 1994, the New Jersey Department of Corrections found inmate Frank Miller
guilty of conspiring to introduce narcotics into prison. Miller appealed the
administrative decision through the state courts. The New Jersey Superior
Court, Appellate Division, affirmed the Department of Corrections, and the
New Jersey Supreme Court denied Miller's petition for certification. Miller then
moved in the district court for an extension of time to file a habeas petition. The
district court denied the motion,finding that it was filed more than one year
after the one year limitation period of 2244(d)(1) became effective under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and thus
was untimely. Miller filed a timely appeal which we construe as a request for a
certificate of appealability pursuant to 2253(c)(1).
II.
Section 2244(d)(1) provides:
3 1-year period of limitation shall apply to an application for a writ of habeas
A
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-4
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing a n application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
Miller's conviction became final in June, 1995, when the New Jersey Supreme
Court denied his petition for certification. Because this was prior to April 24,
1996, the effective date of AEDPA, Miller had until April 23, 1997 to file his
2254 petition. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998).
Accordingly, the district court properly found that Miller's motion for an
extension of time to file a 2254 petition, filed on June 4, 1997, was not filed
within the requisite time period.
Miller argues, however, that this time period should be equitably tolled. He
claims that he was delayed in filing his petition because he was in transit
between various institutions and did not have access to his legal documents
until April 2, 1997, and because he did not learn of the new limitation period
until April 10, 1997. The Ninth Circuit, the only court of appeals to address the
issue, held that 2244(d)(1) is a statute of limitations subject to equitable
tolling. See Calderon v. United States Dist. Court, 128 F.3d 1283, 1289 (9th
Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998).
Judge Kozinski's strong opinion in Calderon has been adopted by Parker v.
Bowersox, 975 F.Supp. 1251, 1252 (W.D.Mo.1997) and United States v.
Gould, No. 97-3090, 1997 WL 535821 (E.D.Pa. July 29, 1997). For the
following reasons, we agree with Calderon.
III.
10
11
As the Ninth Circuit recognized, the language of AEDPA clearly indicates that
the one year period is a statute of limitations and not a jurisdictional bar. See
Calderon, 128 F.3d at 1288. First, 2244(d)(1) refers to the one year as a
"period of limitation" and a "limitation period", and does not use the term
"jurisdiction". See Shendock, 893 F.2d at 1462 (giving "considerable weight" to
Congress' use of term "jurisdiction" in filing provision). Moreover, the statute
affirmatively separates the time limitation provision from the section that deals
with jurisdiction. Section 2244(d)(1), the limitation provision, only speaks in
terms of a one year filing period and does not purport to limit the jurisdiction of
the district courts in any way. Similarly, 2241, the provision in which
Congress explicitly grants jurisdiction to the district courts, does not reference
the timely-filing requirement. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393-94, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (considering the absence
of any reference to jurisdiction in Title VII filing requirement provision and the
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IV.
15
In view of our conclusion that Congress intended the one year period of
limitation to function as a statute of limitation, and thus be subject to equitable
tolling, we will grant the certificate of appealability, vacate the order of the
district court dismissing Miller's motion, and remand for consideration of the
equitable tolling issue. For the guidance of the district court, we observe that
equitable tolling is proper only when the "principles of equity would make
[the] rigid application [of a limitation period] unfair." Shendock, 893 F.2d at
1462. Generally, this will occur when the petitioner has "in some extraordinary
way ... been prevented from asserting his or her rights." Oshiver, 38 F.3d 1380.
Honorable Edward R. Becker, United States Circuit Judge for the Third Circuit,
assumed Chief Judge status on February 1, 1998